V. Viswanath Kamath Vs V. Balakrishna Kamath (Kerala High Court)
The Kerala High Court decided together a Regular Second Appeal (RSA No. 835 of 2017) and a Regular First Appeal (RFA No. 122 of 2020), both arising from disputes among members of the Kamath family concerning ownership, possession, and partition of immovable property. The Regular Second Appeal arose from a suit seeking mandatory injunction directing the defendant to vacate the plaint ‘C’ schedule portion of a building and to execute documents relating to transfer of shares and debentures. The defendant had also raised a counterclaim regarding the shares and debentures. The trial court decreed both the suit and counterclaim, and the decree was affirmed in appeal. The second appeal was confined to the dispute regarding the plaint ‘C’ schedule. The Regular First Appeal arose from a subsequent suit filed by the defendant in the earlier suit seeking partition of the plaint ‘A’ schedule property, including the ‘C’ schedule. The trial court granted a preliminary decree for partition, which was challenged in appeal. Since both appeals involved the same property and rights asserted by the parties, they were heard together.
The property had originally been purchased under Ext.A1 sale deed in the names of H.V. Kamath and his wife Indira Bai. H.V. Kamath executed Ext.A4 Will, asserting absolute ownership over the property and bequeathing the plaint ‘A’ schedule property jointly to two of his sons while giving another son, the defendant, the plaint ‘B’ schedule property together with permission to continue his advocate’s office in the plaint ‘C’ schedule as long as he wished. The defendant contended that the Will created a life interest in his favour over the ‘C’ schedule and further claimed that since the property stood jointly in the names of his parents, his mother owned a half share which devolved equally upon the four children after her death, entitling him to seek partition. He also argued that the plaintiffs’ claim that the mother was merely a name lender was barred by the Prohibition of Benami Property Transactions Act, 1988.
